[00:00:01] Speaker 03:
Case number 15-1001, Alberto Ignacio Aldelia Olivares, petitioner, versus the Transportation Secretary Administration, John S. Pistol, and his official capacity as Administrator of the Transportation Security Administration.

[00:00:17] Speaker 03:
Mr. Goldstein for the petitioner, Ms.

[00:00:19] Speaker 03:
Kerselman for the respondent.

[00:00:33] Speaker 00:
Good morning, Your Honors.

[00:00:35] Speaker 00:
Jason Goldstein on behalf of the Petitioner Alberto Ignacio Ardila Olivares may it please the court.

[00:00:40] Speaker 00:
Your Honors, we're here today because Mr. Ardila Olivares applied for the opportunity or the right to train to receive his type rating certificate in a particular aircraft under the federal aviation regulations.

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And in this particular case, Mr. Ardila Olivares first applied for this

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license through the alien flight student program, which is always... Let me... I think we all know the facts.

[00:01:07] Speaker 02:
Tell me, are you claiming your brief is hard to sort out on this point?

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Are you claiming the declaration is not something that we can consider?

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You spend a lot of time suggesting, or you spend time, or you focus, it seems to be that the declaration

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even as we look at it, doesn't afford reasoned decision making.

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There's a little bit in your brief about you can't have after the fact reasoning submitted, but you don't really highlight that as a point.

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Do you mean to say that, that this cannot come in or not?

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And for clarification, Your Honor, no, what we try to do here to make it clear is that the declaration by Ms.

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Vara can be considered by this court, however... What authority?

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That it can be considered by the court?

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Yeah.

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Well, it's... I mean, I'm curious why you think it can't be.

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Well, we're not saying... Well, to the contrary, we're saying that there's no authority that says a court cannot consider... See, on the one hand, you're arguing postdoc rationalization.

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which is a foreclosure, which means generally in the APA law, an agency cannot give its reasons after the fact.

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And the cases that they cite are not on point.

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I'll raise it with them.

[00:02:24] Speaker 02:
And I did read you correctly not to really be jousting with them over that.

[00:02:31] Speaker 02:
So you're conceding we can look at it, but I still would like to know how so, because we might have to write an opinion, and that's not what APA law is.

[00:02:40] Speaker 00:
Sure.

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And Your Honor, we're not conceding that point.

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It's just that I think what I was going to say is that the declaration by Ms.

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Vara at best is illustrative, but we do stand in our brief where we state that post hoc rationalization... Yeah, but your brief doesn't really effectively argue that the court can't look at this.

[00:02:57] Speaker 00:
Well, then I'll agree with your honor that the court can't... I mean, obviously, if that's your honor's position, we'll certainly adopt it.

[00:03:03] Speaker 02:
No, that's not your honor's position.

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I'm trying to figure out what your position is.

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Our position... Because ADA law is, even the case they cite, a habeas case,

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states what the APA law is.

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Harvey, it says APA law is we have to send it back, if this is an after-the-fact rationalization.

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And the court says, but this is habeas, and that would be a waste of time, so we'll go ahead and do it here.

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But I'm not getting it.

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These other cases that are being cited was counsel offering testimony.

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I mean, they're not relevant to the question we have here.

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Can an agency after the fact submit the reasons

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without showing that the reasons they're now submitting were contemporaneous, like Pitt suggests and Torres suggests.

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Those reasons were there, and that's what we looked at, and we're just confirming for you that our first rejection was based on that information.

[00:04:01] Speaker 00:
Precisely, Judge.

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What we're saying here is that that did not occur.

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That, in fact, the record contemporaneous with the decision made by the TSA is devoid of any facts.

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or information that would support Ms.

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Vars' declaration.

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So her declaration is not merely clarifying the record that was before the TSA at the time in which it was rendering its decision with respect to Mr. Olivares' application in 2014.

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It's rather, in our humble opinion, self-serving and tries, in fact, to create post hoc.

[00:04:28] Speaker 01:
Can we go back a second?

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Suppose that the TSA decision had taken the form substantially of the VARA declaration, in other words, the same reasoning that is stated there had been stated initially.

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Would you have a case?

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In other words, if that's what your rejection letter said,

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If, so I understand the question correctly, is the question if the rejection letter had in fact stated what Ms.

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Barr had provided in her declaration, would we still have our case?

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Yeah.

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No.

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Oh, no, I'm sorry.

[00:05:01] Speaker 00:
Yes, we would still have our case.

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Because?

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Because what's happened here, and I think is frankly dispositive, is that the TSA, based on the same information available to it, had approved Ms.

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Arley-Barr's for training in 2011.

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That's acknowledged in the VARA declaration.

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I'm sorry?

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That's acknowledged in the Vera Declaration.

[00:05:20] Speaker 00:
Well, we think that the Vera Declaration actually doesn't acknowledge that she had before her in 2011 the plea bargain that Mr. Ardila had taken with respect to the narcotics trafficking.

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In fact, the only time it's alluded to at best by the TSA is in their response brief in some parenthetical somewhere within the body of the brief.

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In other words, we think that as part of a number of our arguments, one of the main arguments is that there was a failure by the TSA, notably Ms.

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Vara, to consider that the TSA had previously already granted Mr. Ardilla Olibar's approval.

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But the whole thrust, it seemed to me, of the declaration was that there were changing circumstances.

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They report that

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made them believe they must be more strenuous in their efforts, and therefore they were more strenuous.

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We think that that's unavailing because if you look at whether or not there's substantial evidence here, we think that the, namely, the two additional factors, one is the purported address that the TSA believed that Mr. Arvila had in Massachusetts, tended to show that he reentered the United States impermissibly, and also some suspected connection to arms trafficking back in 1998.

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These two items alone are suspect at best.

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First, the TSA did nothing to ascertain whether or not Mr. Ardilla, in fact, resided at that address.

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In fact, it was his brother who resided there.

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And as his declaration shows, he was receiving mail there because of issues with receiving mail in Venezuela.

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In view of the strange information about the 9-11 hijackers, one can understand an agency being concerned about a US address for a deported alien.

[00:07:01] Speaker 01:
Right?

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I agree it would be much better if they had looked into it.

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Even with the explanation of the brother, it's not nothing.

[00:07:16] Speaker 00:
I think Your Honor is correct.

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However, respectfully, I believe in this instance, it was incumbent upon the TSA to do just a little bit of research, and it would have been very easy to determine that Mr. Ollibar is not re-entered in the United States.

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It's not something that's easy for him to do.

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He's done nothing in the past to indicate that he has, in fact, re-entered the United States.

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And frankly, it's not uncommon

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for an airman to hold an address that's different from where he may actually be residing at the time.

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They were saying all things considered.

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They're looking at all of it now.

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It's a total record.

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I mean, you're faulting them for being a little bit ragged and catching up with what they had.

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They did, but Lord knows TSA has got a lot on their plate now.

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And so you're right.

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It looks strange.

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It took them a while to figure out what they really had.

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So it seems to me we have to look at it.

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what they thought they had when they finally put it all together.

[00:08:05] Speaker 02:
They didn't have it all together initially, so what?

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They had it all together, and then they wrote the declaration.

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I'm more interested in whether or not the declaration is properly before us.

[00:08:16] Speaker 00:
Right, and I agree with your honor.

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I don't think that the declaration is properly before us because I don't think there's evidence in the record to show that the TSA had this information at that time.

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It appears on a hot time.

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at the time that it made its decision.

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In other words, it appears that the TSA's decision was initially based on Mr. Ardilla's immigration status, and that subsequent to that there was just simply a denial of his request.

[00:08:38] Speaker 01:
Well, I mean, you may be right, but the words are,

[00:08:41] Speaker 01:
Pursuant to the revised procedure, Petitioner was subject to an investigation which revealed the following.

[00:08:48] Speaker 01:
Now, I take your point that they had in their records, actually I'm not 100% sure they had in their records the guilty plea to the narcotics, but the other things, there's no reason to think they knew about, right?

[00:09:02] Speaker 00:
Well, it's unclear.

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That's the question.

[00:09:04] Speaker 00:
Because Ms.

[00:09:05] Speaker 00:
Vara's declaration makes it unclear whether or not the TSA had before the conviction that preceded the 2011 approval, even though we know, and I don't think the TSA is going to argue, that they didn't know in 2011 that he had that conviction.

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And I think it's quite curious that the TSA now claims that it had before this

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alleged attenuated connection to arms trafficking from 1998, nearly two decades ago, that it now finds, when taken into consideration with the other two factors, the U.S.

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address and the prior conviction, now makes Mr. Ardilla a security threat.

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And notably before this court, if I may, and I reserve two minutes for rebuttal, but if I may, very briefly.

[00:09:40] Speaker 02:
That's a different question.

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You're assuming this and saying that's not reasoned decision-making.

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It's different from the questions of whether we can even consider it all, unless it's,

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unless it's based on records that were before the agency when they made the rejection decision.

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Right, and I think that if this court finds, only if this court finds that Ms.

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Vara's declaration somehow is illustrative of what the court believes was in fact before.

[00:10:11] Speaker 00:
Why didn't you argue that?

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I'm sorry?

[00:10:12] Speaker 02:
Why didn't you argue that?

[00:10:15] Speaker 02:
You're not arguing that I'm feeding that to you, and that's because I'm concerned about the law, and I don't think we should go crazy in stating APA law, but that's not your argument.

[00:10:25] Speaker 02:
You're arguing on the merits of the declaration in your brief.

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I read it many times, because the first thing that leaped out is, I mean, how does this declaration get here?

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And you're arguing that it's not good reasoning.

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But as opposed to a whole section should have been, you can't consider this.

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And Taurus doesn't cover this situation, because they're not showing this declaration as based on materials that were before them when they made the rejection.

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I'll ask them that.

[00:10:51] Speaker 02:
It seems to me that's as far as we go with the law.

[00:10:54] Speaker 00:
Right, agreed, but Your Honor, I do believe that in our initial brief, we did in fact argue that with respect to postdoc rationalization... Postdoc rationalization?

[00:11:02] Speaker 02:
You never played it out anywhere.

[00:11:04] Speaker 02:
I understand what you're saying.

[00:11:05] Speaker 02:
You said postdoc rationalization, then you go on to debate whether the declaration is adequate.

[00:11:10] Speaker 02:
That was in the alternative, and if it wasn't clear, let me make it clear.

[00:11:13] Speaker 02:
It would have been nice if you had put it in there.

[00:11:14] Speaker 00:
Right, and so we're making that, let me make that clear now, that that's an in the alternative argument, that should this court find the declaration acceptable and illustrative, then we believe that the court needs to find whether or not there was recent decision-making and a rational connection between the evidence before the TSA and its ultimate conclusion that Mr. Ardilla should be denied, irrespective of his prior approval of his training request in 2011.

[00:11:36] Speaker 00:
We'd like to reserve if we made two minutes for rebuttal.

[00:11:39] Speaker 00:
If there are no further questions.

[00:11:49] Speaker ?:
Okay.

[00:11:49] Speaker 02:
Thank you.

[00:11:50] Speaker 02:
I'm giving you my concerns.

[00:11:51] Speaker 02:
I mean, you're, uh, I don't know how the declaration comes in.

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And this leaped out at me immediately.

[00:12:00] Speaker 02:
And I looked at what you were citing.

[00:12:01] Speaker 02:
Harvey's not on point.

[00:12:02] Speaker 02:
Harvey makes it very clear that they did what they did there because the court thought in a habeas situation, we don't have to go with the normal APA rules.

[00:12:11] Speaker 02:
The best you got is Taurus.

[00:12:13] Speaker 02:
which goes back to Pitts, and Torres says that the late declaration was based on internal memorandum and push upon which it was based.

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And your declaration doesn't say that we're merely confirming that this is the information that the rejection was based upon.

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And I don't know any other law that allows you to submit like this.

[00:12:41] Speaker 05:
Your honor, Jiffrey allows us to do this.

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These facts are very similar to the facts in Jiffrey.

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And if you go to the underlying computer records in this case, those records talk about the same facts that the very declaration talks about.

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I'm looking at JA 49 and 50.

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They talk about

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the conviction, they talk about the ATF investigation.

[00:13:02] Speaker 02:
The court looked at classified information that was purported to be classified from the outset in Jiffrey and they said we can look at that in camera here.

[00:13:10] Speaker 02:
That's not this case.

[00:13:11] Speaker 02:
You're not suggesting that this is classified information.

[00:13:13] Speaker 02:
Jiffrey's not on point.

[00:13:15] Speaker 02:
Your Honor, in Jiffrey... Let's take Jiffrey out, okay?

[00:13:18] Speaker 02:
I understand what you're trying to argue on Jiffrey.

[00:13:21] Speaker 02:
There's no case law that I can find, and maybe you've got it.

[00:13:24] Speaker 02:
There's no case law that I can find that's allowing what you're trying to do.

[00:13:29] Speaker 02:
Oh, we'll give you the reasons now.

[00:13:31] Speaker 02:
You're right.

[00:13:32] Speaker 02:
That first rejection was kind of stupid.

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We didn't say anything.

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But now let us tell you.

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The whole process of 5E is to allow the other side to have information to understand what the agency's doing.

[00:13:47] Speaker 05:
Your Honor, Jiffre involved a declaration that was submitted to the court that provided the basis for the agency's decision.

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Because it was classified information and it had to be read in camera.

[00:14:00] Speaker 02:
It isn't something you'd give to a party.

[00:14:02] Speaker 05:
There were two things in Jiffy.

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There was the declaration by the agency's decision maker, which referred to the classified information, which was submitted in camera.

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And the court reviewed that declaration from the decision maker.

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Here, in any event, the records at the time, the computer records, explain the same things that the Vera Declaration talks about.

[00:14:23] Speaker 05:
They talk about the ATF investigation.

[00:14:26] Speaker 05:
They talk about the

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address and they talk about the criminal conviction and they conclude in those computer reports that he presents a threat to national and aviation security.

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Now the Vera Declaration explains more, connects dots, but it's very clear from the record that that is what the agency was looking at at the time.

[00:14:51] Speaker 02:
Can you take us through that?

[00:14:53] Speaker 02:
Yeah, take us through that.

[00:14:54] Speaker 02:
Certainly.

[00:14:55] Speaker 02:
We're missing that one.

[00:14:57] Speaker 05:
Okay, so on pages 49 and 50, that's the computer records that I'm talking about.

[00:15:03] Speaker 05:
And that lays out the results of the investigation.

[00:15:07] Speaker 05:
So it mentions the drug conviction.

[00:15:11] Speaker 05:
And then it says there was an investigation that related to candidate or appears to relate to candidate where he suspect was subject rather.

[00:15:21] Speaker 01:
Where are you on page 49?

[00:15:23] Speaker 05:
I'm sorry.

[00:15:23] Speaker 05:
Now I'm on page 50.

[00:15:24] Speaker 05:
I just started on page 49.

[00:15:26] Speaker 05:
So I'm on this first full paragraph on page 50.

[00:15:31] Speaker 05:
that discloses the text record of the investigation that appears to relate to Candidate and it says he was associated with the aircraft that arrived in Aruba, was searched by local authorities, had six weapons and half a million dollars reported to have been seized.

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His associate was arrested.

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Petitioner here alleged to have departed.

[00:15:54] Speaker 05:
He should be detained and questioned regarding the seizure.

[00:15:59] Speaker 02:
And this indicates this confirms that this is what the agency was looking at before it wrote the rejection.

[00:16:06] Speaker 05:
That's right.

[00:16:07] Speaker 05:
This is the computer record that shows what the agency found.

[00:16:11] Speaker 05:
And then if you go to the front of this record,

[00:16:13] Speaker 05:
on page 47, you see the outcome, deny threat to transportation national security.

[00:16:20] Speaker 05:
So these are the contemporaneous records.

[00:16:22] Speaker 05:
They may not connect all the dots, they're not required to, but there's no need to remand for a decision that looks like the Vera Declaration that does connect every dot.

[00:16:34] Speaker 01:
You write off 555E by citing a case that says it's important for judicial review.

[00:16:41] Speaker 01:
It does say it's important for judicial review.

[00:16:43] Speaker 01:
It doesn't say, and therefore we don't have to pay any attention to it.

[00:16:48] Speaker 01:
But you seem to be, that's the inference you seem to draw.

[00:16:51] Speaker 05:
I do think that we satisfy 555E here and that we have both the result and the basis for the decision.

[00:16:58] Speaker 05:
This court hasn't looked at what 555E means in the specific context where there are typically national security reasons that would prevent disclosing the underlying facts.

[00:17:11] Speaker 02:
You didn't invoke that.

[00:17:13] Speaker 02:
I'm sorry?

[00:17:13] Speaker 02:
Did you invoke that as your explanation?

[00:17:16] Speaker 05:
Yes, Your Honor.

[00:17:18] Speaker 02:
Where?

[00:17:18] Speaker 02:
In the rejection?

[00:17:20] Speaker 02:
You said there are reasons that we're not going to reveal to you because of national security?

[00:17:25] Speaker 05:
Oh, no.

[00:17:25] Speaker 05:
I'm sorry.

[00:17:25] Speaker 05:
I misunderstood the question.

[00:17:27] Speaker 05:
In our brief, we explained that in this context, we have satisfied 555E because of the national security reasons that are typically here.

[00:17:37] Speaker 05:
Now, in this case, of course, there is this is happenstance that we actually could

[00:17:42] Speaker 05:
disclose all of the reasons, and in this case, we do have the contemporaneous computer records and the declaration that explains the basis for the agency's decision.

[00:17:54] Speaker 04:
So, yes, your honor.

[00:17:59] Speaker 04:
You had started off, I think, providing us a roadmap for why this was really just clarifying what was the contemporaneous basis for their decision.

[00:18:10] Speaker 04:
And my question is, where in the declaration does it say that?

[00:18:17] Speaker 05:
So the declaration says that it is providing the basis for the decision.

[00:18:28] Speaker 05:
She says, I concluded, based on all the foregoing information, this is paragraph 16 on page 54, based on all the foregoing information, which is the information disclosed in the investigation, she doesn't say that's recorded in the computer records, but of course it is.

[00:18:42] Speaker 04:
You're saying it's implicit, although she doesn't explicitly say, you know, our decision was based on it just says this information.

[00:18:57] Speaker 05:
So I want to be very careful here.

[00:18:59] Speaker 05:
I'm not sure my answer was clear.

[00:19:01] Speaker 05:
She says,

[00:19:03] Speaker 05:
This information, which is the information disclosed in the investigation, discussing paragraph 14, right?

[00:19:09] Speaker 05:
So paragraph 15, this information viewed as a whole demonstrated petitioner's willingness to consistently disregard the law and to use the aircraft for criminal activity in opposition to U.S.

[00:19:18] Speaker 05:
security interests.

[00:19:20] Speaker 05:
This information, again, the information were found in the investigation.

[00:19:25] Speaker 04:
So what you're saying is these computer records in her declaration

[00:19:30] Speaker 04:
she's actually reciting or summarizing those documents.

[00:19:36] Speaker 05:
Well, she does, right here in paragraph 14, summarize the factors found in the investigation.

[00:19:43] Speaker 05:
And then she concludes, paragraph 16, based on the foregoing information, I concluded that that's explaining her decision.

[00:19:52] Speaker 05:
She concluded when she made the decision.

[00:19:54] Speaker 02:
When she did it after the fact.

[00:19:56] Speaker 05:
No, she concluded petitioner posed a threat to aviation national security and denied his request on November 5, 2014.

[00:20:05] Speaker 05:
She said she concluded it on November 5, 2014.

[00:20:10] Speaker 05:
And of course, there is a presumption of regularity in this kind of sworn declaration by the agency decision maker.

[00:20:17] Speaker 02:
No, there's a larger principle here.

[00:20:21] Speaker 02:
For us to let this get out of hand in the way you're posing it would wreak havoc.

[00:20:27] Speaker 02:
in administrative law, to have the agency say, well, you know, we'll explain it now if you want it.

[00:20:32] Speaker 02:
That's not what 555E means.

[00:20:34] Speaker 02:
That's not what administrative law is about.

[00:20:36] Speaker 02:
Agencies are supposed to give reasons, unless there are security risks or some other justification, at the time when they issue their decisions.

[00:20:44] Speaker 02:
Otherwise, it goes back.

[00:20:46] Speaker 02:
Just like Harvey says, the case you principally rely on.

[00:20:49] Speaker 05:
Well, I think that it's important to look at the specific context of this statutory scheme.

[00:20:54] Speaker 05:
This is a case in which Congress didn't create any rights for the aliens, said that the decision goes to the flight school.

[00:21:02] Speaker 01:
It doesn't make- Yeah, but Congress did enact 555E.

[00:21:07] Speaker 05:
But it doesn't make sense to think that Congress was creating a situation where somebody's personal information would be sent to the flight school, especially when that information in the mine run of cases

[00:21:18] Speaker 05:
is going to involve protected information.

[00:21:21] Speaker 05:
And even going through the process of scrubbing that, deciding what can be released, does raise a risk of releasing protected information.

[00:21:31] Speaker 02:
So what kind of opinion are you proposing when you write that we're in the TSA area, the agencies should feel free to do whatever they're comfortable with?

[00:21:39] Speaker 05:
I propose that this court follow GIFRI, look at the agency's declaration, which is consistent with the contemporaneous computer records,

[00:21:49] Speaker 02:
And say that- Sharefree involves an invocation of confidential information.

[00:21:53] Speaker 02:
It's a very specific case.

[00:21:57] Speaker 02:
It's an exception to the rule.

[00:21:58] Speaker 02:
There aren't any other cases you're citing.

[00:22:01] Speaker 02:
Harvey, what you lead with is absurd.

[00:22:05] Speaker 02:
It's an absolutely absurd.

[00:22:06] Speaker 02:
It's an embarrassing citation because court says just the opposite of what you wanted to say.

[00:22:11] Speaker 02:
They say, well, skip the normal rule because it's a habeas case.

[00:22:14] Speaker 02:
That's embarrassing for you to submit that to us.

[00:22:16] Speaker 05:
Your Honor, Harvey says or Adrian says that we don't need to remand this case to the agency in the context of habeas.

[00:22:27] Speaker 05:
That case is in the context of caveas, but it makes clear that you don't need to remand for the agency to come up with the same decision that they already have.

[00:22:36] Speaker 05:
We cited the cases that we were aware of on this, but of course, Jiffrey is our strongest case.

[00:22:40] Speaker 05:
Jiffrey, I do want to distinguish between the classified information in Jiffrey, which was submitted in camera ex parte, and the declaration, which was simply submitted publicly to the court, and is what the court looked at for the basis of the decision.

[00:22:57] Speaker 05:
The cases that we cite also make clear that this kind of decision doesn't, this isn't what the court is thinking of when it talks about a post-hoc declaration because this is something that is based on, that explains the decision at the time.

[00:23:16] Speaker 05:
And of course, going back to a petitioner's arguing- You're saying this is simply Taurus.

[00:23:20] Speaker 05:
I'm saying this is simply jiffy, but going back to a petitioner's argument.

[00:23:24] Speaker 02:
Wait, wait, wait.

[00:23:25] Speaker 02:
Now I'm really trying to figure out what you're saying.

[00:23:27] Speaker 02:
Why is it not Taurus?

[00:23:29] Speaker 05:
I think that the jiffy is our strongest case.

[00:23:31] Speaker 02:
Because?

[00:23:33] Speaker 05:
Because in that case, the court reviewed the agency's declaration submitted in the Court of Appeals for the basis for the agency's decision.

[00:23:43] Speaker 05:
But going back to what he argues, he's not arguing in his brief, as Your Honor pointed out, that the court can't review this declaration.

[00:23:51] Speaker 05:
He's arguing that this decision was made on the basis of his immigration status.

[00:23:55] Speaker 05:
And that is simply incorrect, looking at the documents at the time.

[00:24:01] Speaker 05:
The computer records, the letter, and the declaration all make clear that this is a decision that was made on the basis of his security status.

[00:24:13] Speaker 05:
I see that I'm out of time.

[00:24:15] Speaker 04:
Can I ask you just something else that's related to this, I think, which is that the letter, as I read it, says TSA is unable to determine whether or not

[00:24:29] Speaker 04:
you pose a threat to aviation or national security.

[00:24:33] Speaker 04:
So the denial letter is actually different from what is said in the declaration.

[00:24:41] Speaker 05:
Well, any ambiguity that is in the declaration letter that comes out of that double negative is clarified by the declaration, which says exactly what the decision maker found, that she did find that he did present a risk to, that he did pose a threat to aviation and national security.

[00:24:57] Speaker 05:
So that ambiguity has been clarified.

[00:25:00] Speaker 05:
If there are no further questions, I support to deny the petition.

[00:25:07] Speaker 04:
All right.

[00:25:08] Speaker 04:
I know Mr. Goldstein was out of time.

[00:25:10] Speaker 04:
But we will give you two minutes.

[00:25:15] Speaker 00:
Thank you, Judge.

[00:25:16] Speaker 00:
Very briefly, just to address the points that were raised by counsel for the TSA.

[00:25:20] Speaker 00:
First of all, Jeffrey is highly distinguishable, as Your Honors know, in the Jeffrey case.

[00:25:23] Speaker 00:
The court there was considering highly classified information in camera ex parte, unlike in this case where the entirety of the record that was filed was a public record.

[00:25:33] Speaker 00:
Nothing has been submitted under CO or nothing has been claimed to be of sensitive nature such that it could not, in fact, be disclosed to either a flight school

[00:25:40] Speaker 00:
or Mr. Olivares himself.

[00:25:42] Speaker 00:
If that were the case, then I think we would see findings under seal in this particular case.

[00:25:47] Speaker 00:
Also, as Judge Brown notes, the decision by the TSA that was issued contemporaneously to Mr. Olivares states, in fact, that the TSA is unable

[00:25:59] Speaker 00:
quote, unable to determine that you do not pose a threat to aviation or national security, end quote.

[00:26:05] Speaker 00:
Of course, Ms.

[00:26:05] Speaker 00:
Varr's declaration provides more certainty, but however notably, the statute that is on point 49 CFR 1540.117

[00:26:17] Speaker 00:
subsection three essentially states that there's a threat where there's one is suspected of or known to pose a threat to transportation or national security.

[00:26:26] Speaker 00:
We submit to the court that the statement provided to Mr. Arley-Barr as contemporaneous with his denial is not tantamount in any way.

[00:26:32] Speaker 00:
It cannot be read in any way to satisfy that reading of the statute.

[00:26:36] Speaker 00:
There's nothing that indicates that Mr. Arley-Barr was suspected

[00:26:38] Speaker 00:
of being a threat to transportation or national security, or certainly not that he was known to be a threat.

[00:26:43] Speaker 00:
Ms.

[00:26:43] Speaker 00:
Vara's attempt to remediate this fatal defect is unavailing given that it's now at the Slate Juncture.

[00:26:51] Speaker 00:
And we rest on our remaining arguments on our brief and our reply brief, and respectfully request that this court remand with instructions for the TSA to adhere to the law in reviewing Mr. Olivares' request for training under the AFSP.